Carruthers v. Southern Ry. Co.

• Decision Date: 24 May 1950
• Docket Number: No. 667,667
• Citation: 232 N.C. 183,59 S.E.2d 782
• Court: North Carolina Supreme Court
• Parties: CARRUTHERS et al. v. SOUTHERN RY. CO.

Page 782

59 S.E.2d 782

232 N.C. 183

CARRUTHERS et al. v. SOUTHERN RY. CO.

No. 667

Supreme Court of North Carolina.

May 24, 1950

Falk, Carruthers & Roth, Smith, Wharton, Sapp & Moore, and Harrell Pope, Greensboro, for plaintiff-appellant.

W. T. Joyner, Raleigh, and R. M. Robinson, Greensboro, for defendant-appellee.

DEVIN, Justice.

It was not controverted that there was evidence of negligence on the part of the defendant Railway Company. Therefore, the propriety of the nonsuit depends upon whether the plaintiff's evidence establishes such contributory negligence on the part of the intestate as bars recovery. The rule is well settled that in order to sustain a nonsuit on this ground the evidence tending to show contributory negligence must be so clear that no other conclusion reasonably can be drawn therefrom. Collingwood v. Winston-Salem Southbound Ry. Co., N.C., 59 S.E.2d 584; Penland v. Southern R. Co., 228 N.C. 528, 46 S.E.2d 303; Bailey v. North Carolina R. Co., 223 N.C. 244, 25 S.E.2d 833; McCrimmon v. Powell, 221 N.C. 216, 19 S.E.2d 880; Jeffries v. Powell, 221 N.C. 415, 20 S.E.2d 561; Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637. The fatal injury occurred on the grounds of the Pomona Terra Cotta Company at a point where a road used for vehicular traffic by employees of the Terra Cotta Company crosses a spur track which leads from the main line of the defendant Railway Company into the plant of the Terra Cotta Company for use in handling freight and delivering coal. The track extends north and south and the road east and west. The road was much used by vehicles. Engines and cars pass over the track almost daily and usually in the afternoon. September 10, 1947, between 3:00 and 4:00 o'clock P.M. the plaintiff's intestate, who had been employed by the Terra Cotta Company for two years as truck driver, was driving an empty truck along this road, moving west toward the crossing over the spur track at a speed of 10 to 15 miles per hour. A slight rain was falling. The intestate was alone in the cab of the truck but two other employees were sitting on the side of the flat truck body facing north. On the right of the road as one approached the crossing was a line of brick kilns extending north parallel with and east of the railroad track. These kilns obstructed the view of one traveling west toward the crossing until he was 24 feet 8 inches of the east rail of the track from which point he could see to his right up the track north more than 700 feet. Due to the fact the kilns were circular in form with rounded tops, at a point 28 or 30 feet from the crossing the view to the north was unobstructed for several hundred feet.

At the time the intestate approached the crossing the defendant's engine and cars were moving south on the spur track, without signal or warning, and the engine struck the truck at the right cab door and inflicted injuries on the plaintiff's intestate from which he shortly thereafter died. The two fellow employees of intestate, who were on the truck, jumped in time to avoid injury. They testified the intestate drove on the track without slackening speed, or turning. There was no evidence he applied brakes. The intestate, who had been driving trucks in and about the plant for several years, was familiar with the road, the spur track, and the kilns, and was...